Key Tomblin mine safety measure not enforced

CHARLESTON, W.Va. -- Last week in his inaugural address, Gov. Earl Ray Tomblin touted his administration's efforts to ensure the safety and health of West Virginia's coal miners.

"We made our mines safer by passing a comprehensive mine safety bill to protect the thousands of miners across this state who work each and every day so we may all enjoy a better life," the governor said after being sworn in for a new term.

Today, though -- more than 10 months after that bill was passed -- a key provision isn't being enforced, officials confirmed last week. And it's not likely to be enforced any time soon, they said.

Tomblin and legislative leaders repeatedly touted language aimed at tightening the state's requirement for mining equipment to be automatically shut off when methane is detected underground.

State regulators, though, have never written rules to implement that part of the legislation. Without those rules, the state Office of Miners' Health, Safety and Training is prohibited from enforcing the tighter methane-shutoff requirements.

House Majority Whip Mike Caputo, D-Marion, said he had heard the rules were delayed, but had not kept up with the details of what had happened.

"I know they were struggling with it," said Caputo, a United Mine Workers union official. "I want them to find a way to get this done. That is clearly a key requirement of this mine safety bill."

Methane is naturally present in coal mines, loosely attached to coal molecules when deposits are under pressure. Mining removes that pressure, releasing the gas. Methane is highly explosive, posing a constant and serious danger, especially if coal operators don't properly ventilate their mines. At Massey Energy's Upper Big Branch Mine, a small methane ignition on April 5, 2010, grew into a huge coal-dust-fueled explosion that killed 29 miners, making it the worst U.S. coal-mining disaster in nearly 40 years.

Coal operators are required to monitor underground mines for methane, which can explode when it is present at between 5 percent and 15 percent of the air.

Under federal rules, methane monitors are designed to automatically shut down underground mining equipment if the explosive gas is detected at concentrations of 2.0 percent or greater. The idea is that shutting down mining equipment removes a potential source of a spark that could ignite methane and cause a catastrophic explosion.

In West Virginia, Tomblin announced plans for a stronger standard as part of a broader mine safety bill he touted as part of his 2012 State of the State address.

"Coal mining is a dangerous profession, but we can make it safer," Tomblin said at the time. "One death in our mines is one death too many."

Initially, legislation introduced by House Democratic leaders, coal-cutting devices on mining equipment would be required to automatically shut down when methane concentrations reached 1.25 percent.

During negotiations with coal industry and UMW lobbyists, the language was re-written so that the automatic shutdown would occur only if methane concentrations reached 1.25 percent for a "sustained period." Lawmakers required the state Board of Coal Mine Health and Safety -- a panel of industry and labor representatives appointed by the governor -- to write rules to define the phrase "sustained period."

Lawmakers approved the legislation on March 6, 2012. Tomblin officially signed the measure on March 16 and then held a second, public signing ceremony on March 21. The legislation took effect in June, 90 days after its passage.

Under the bill, board members had four months from the bill's effective date -- or by October -- to write the rules. However, industry and labor representatives apparently were unable to reach agreement on how to define "sustained period," with industry officials wanting a looser definition, and UMW officials a more restrictive one.

In fact, a year before Tomblin's bill was even considered, the mine safety board -- after a legislatively mandated study of the issue -- proposed a new rule to require coal-cutting devices on machines to automatically shut down when methane reaches 1.25 percent. That proposal, submitted to the board by administrator Joel Watts in December 2011, was never finalized by board members.

Chris Hamilton, a West Virginia Coal Association representative to the board, agreed that board members "have struggled to get the rules written."

"The board has not met its obligation under that piece of legislation, as of yet," Hamilton said last week.

Hamilton, though, said that he didn't really consider the methane monitoring provision a major part of the legislation. Hamilton said that drug-testing requirements for miners, restructuring training efforts for miners and improving mine inspection practices were more critical.

Hamilton also said the real holdup with the methane monitor rules is not necessarily agreeing to a definition of "sustained period." The legislation also requires the board rules to establish a schedule for when mine operators must have the new methane monitoring and automatic shutdown systems in place.

While lawmakers ordered the board to write its rules within 120 days, the Legislature did not set any time limit for when the monitoring and shutdown systems actually must be in place and operational. Lawmakers left that up to the board.

Also, Hamilton said setting up such a schedule is complicated by the fact that existing methane monitors have read-out systems that show only two digits. They will show a concentration of 1.5 percent methane or 1.0 percent methane, but not 1.25 percent methane, Hamilton said.

To comply with the state's new rules, mine operators will have to convince methane monitor manufacturers to provide them with entirely new units. Those units will have to be designed and built -- and go through the process of receiving federal approval to be used in underground mines, Hamilton said. This could take three years or more, he said.

Mark Sindelar, a West Virginia University engineering professor who has studied methane monitoring systems, said the problem could have been avoided had lawmakers set the methane shutoff levels at 1.2 percent or 1.3 percent instead of 1.25 percent.

"People sometimes underestimate the hardware side of changes," Sindelar said. "If they would have set it at 1.2 percent or 1.3 percent, it would have been a pretty easy technological change."

Longtime mine safety advocate Davitt McAteer said state officials and lawmakers -- and certainly industry officials -- should have realized that their change was going to require entirely new methane monitoring equipment. Industry officials raised the issue with him before the bill passed, McAteer said, and he referred those concerns to the state Office of Miners' Health, Safety and Training.

Caputo complained that industry lobbyists clearly should have understood the issue, but never raised it during negotiations at the statehouse.

"Nobody from the industry said at the time that it wasn't doable," Caputo said.

Eugene White, who took over this month as director of the state mine safety office, did not respond to repeated phone messages or emails. Neither the mine safety office nor the mine safety board responded to requests for documents about efforts to write the methane monitor rules. Watts, the board administrator, would not comment.

On Friday, the Governor's Office issued a short statement in which Tomblin said, "These rules are critical to the safety of all miners and their families. I urge the board to quickly reconvene and make this a priority."

McAteer, though, said the way the issue has been handled makes him question whether mine safety enforcement is really a top priority for state officials.

"The failure to fix this suggests we weren't paying attention," McAteer said. "We need to make sure these improvements can take place in a reasonable time frame."